I have a draft article that proposes a solution to sexting, revenge porn, and the like. I’ll put up an excerpt after submission season ends and I can give the piece the attention it deserves. But, for the moment, here’s a different proposal: why don’t all revenge porn victims submit takedown notifications under Title II of the DMCA (17 U.S.C. 512(c)(3))? Doing so puts the site on the horns of a dilemma: remove the content, or face liability under the Copyright Act. (I suspect a jury would be all too ready to find infringement, and since damages are up to the jury, the award could be sizeable. Even defending such a suit would be costly for the site’s proprietors.)

There are two objections to my plan, both potentially significant. First: the victim is not the copyright owner. Second: 512(c)(3)(A)(vi) requires certification under penalty of perjury that the complaining party is authorized to act on behalf of the copyright owner / owner of an exclusive right, and no one wants to be prosecuted for perjury. (Not even Roger Clemens.) But: I have responses to both.

Photography is a challenging area for copyright law. Some photographs will not even be eligible for copyright: those that lack the requisite originality. Some photos will merely capture the natural world with no input from the photographer – think of an accidental iPhone snap, or just pointing your high-speed camera at a parade and holding down the shutter button. And in some cases, the person pressing the camera button will not be the photographer. All the creative work has been done by someone else – someone who created or set up the tableau which the photograph records. (See, for example, Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1991).) That means that it is the person who created the scene who could obtain copyright. The photographer is a mere amanuensis (probably a terrific Scrabble word). (Cf. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998).) So, a crude approximation of the rule for authorship in photos would be this: the source of the original, creative elements of the photo is an author.

For revenge porn, I think there is a defensible position that the subject – the victim – of the image or video is at least a joint author. Why do people look at these images? (A good question there, full stop.) Because of the subject – not because of the lighting, the use of unusual color or angle, the excellent development of the print, or any other contribution by the photographer. Put it this way: imagine that the victim is replaced by a dummy, or Felix the Cat. No one is even going to glance at the photo: there’s nothing expressive or original about it.

I think that means that a victim, and her attorney, can often take a legally defensible position that she is an author of the photo. That means she can, under 512(c)(3), send a take-down notification to the site. This raises the second objection: you have to certify, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right. I think that the victim is such an owner – indeed, an author. One would also hope that, in close cases, a prosecutor might decline to pursue perjury charges against the victim / her attorney. I don’t think it would be easy to prove perjury beyond a reasonable doubt. Heck, they couldn’t get Clemens! Or Barry Bonds! (True, they had expensive lawyers.) I suspect a jury would be sympathetic to the dilemma the victim faces. And I would hope that a prosecutor would either see a better use of her limited resources, or would feel constrained by the likely public reaction to an attempt to prosecute someone who already had been harmed so greatly.

Interesting angle. I think that the best recourse for victims is in copyright, not tort, and I’m baffled as to why all of these lawsuits are completely ignoring the copyright angle.

Another possibility, which would avoid the prospect of perjury, is to target the person who took the photos (assuming it wasn’t a self-taken picture). The feral operators of revenge porn sites will ignore legal threats, citing the CDA, but the person who took the photo isn’t protected by the CDA. A threatening letter from a lawyer might be enough to pressure him or her into signing over the copyright. Then the victim can send a DMCA to the site.

Unfortunately, the sites will often ignore even indisputably legitimate DMCA takedown notices. One operator told a victim that the only way to force her photos offline was to trademark them. Hunter Moore, the king of revenge porn, even ignored an injunction until a judge held him in contempt and raised the prospect of a bench warrant.

The best strategy is to focus on copyright, get a judgment, and then seize the sites to satisfy the judgment. What worries me is that the attorneys suing in tort are going to find themselves blocked by the CDA (although I think that some sites may not be immunized under the CDA), and revenge porn site operators will see that as justification to carry on.

But if copyright is going to be deployed for evil, why not use it for good as well? Plus, it’s worth remembering that the whole point of copyright, originally, was to allow the British crown to censor more effectively.

Adam: That is a clever idea. I hadn’t thought about that – forcing the perpetrator to sign over the copyright. Interesting. I think one thing that would help is if a victim were to (attempt to) register copyright quickly – the statutory damages hammer would be very useful here.

I disagree completely, to make this argument would go against years of copyright law in which being the subject of a work does not constitute authorship. I think the biggest flaw is how you try to distinguish revenge porn from other photography or other copyrighted works generally. The “replace with a dummy/Felix” argument makes little sense because the same could be said of paintings, movies, songs, etc. (replace subject X and no one would want it) – not to mention that market demand does not create copyright (it exists in really bad unmarketable works). The real problem is that I don’t see anything that truly distinguishes revenge porn from all other copyrighted works (which would be needed to have a copyright application that appiled differently in this context).

We’ve already repeatedly seen the trick of forcing a content originator to sign over the copyright to an objectionable work to a person who objects to the content. See, e.g., http://blog.ericgoldman.org/archives/2012/05/the_meme_that_w.htm For example, it’s also a useful tactic for businesses that want to force the removal of negative consumer reviews, even from review sites that would otherwise stand up to a takedown notice. Is that a technique we really want to encourage? Perhaps you think the ends justify the means, but the tactic unavoidably will be used for less laudable ends. Eric.

I think you make an excellent case that the subject of the photograph could (and likely would) be an author of joint work. However, it seems equally clear to me that if we take that route, the photographer must also be a joint athor (i.e., by choosing where to stand and the angle/framing of the shot he is contributing copyrightable elements). If that is the case, and the website’s terms of use define uploads as non-exclusive licenses to copy and display the images, then wouldn’t the website be a legitimate licensee?

It is my understanding that each joint author has the ability to license the joint work nonexclusively without the permission or consent of the other joint authors (though the law differs throughout most of Europe). That being the case, in terms of copyright, the wronged ex’s recourse would not be against the website, but against her ex-boyfriend (the poster) under some theory of the waste doctrine, which would be unproductive in terms of taking down the photo.